Monday Morning Answers

My team had a busy weekend. We won our quarterfinal game Friday night. Then, Saturday afternoon, the guys held off Edmunds, 25-23, in a semi-final thriller. That proved to be the end of the line, however, as Albert D. Lawton steam-rolled us in Saturday night’s championship. Despite the loss, I’m super proud of the players. They’ve grown so much since November and, even though defeat was apparent by halftime, they competed their tails off until the final buzzer.

There’s a rule that applies only to a specific type of lawyer. Per a comment to the rule, it’s a type of lawyer who “has the responsibility of a minister of justice and not simply that of an advocate.”

Attorney called me with an inquiry. Attorney said “Mike, I represent a witness. The defendant’s attorney keeps contacting my client directly. I asked him to stop. He said he doesn’t need my permission because my client is only a witness, not a party. Is he right?”

What was my response?

A. Yes, he’s right.

B. The rule is unclear.

C. The rule is unclear, but, by case law, no, he’s wrong.

D. He’s wrong. The rule applies to any person represented in a matter.

Rule 4.2 applies whenever a lawyer knows that a person, party or not, is represented in a matter.

Question 3

How long do the rules require lawyers to keep copies of advertisements?

A. 2 years

B. 6 years.

C. Wait, what? We have to keep copies of advertisements?

D. They don’t. The 2-year retention requirement was repealed in 2009.

Question 4

True or false.

If a lawyer sells her practice, the rules require her to cease the private practice of law in the geographic area in which she practiced.

True. I don’t know that I understand the rationale, but it’s in the rule. It’s Rule 1.17(a).

Question 5

Monday is Presidents’ Day.

25 U.S. Presidents have been lawyers.

Name the most recent U.S. President to have argued a case before the United States Supreme Court prior to becoming president.

I’m not positive, but methinks this week’s is the largest Honor Roll ever!

Friday’s questions are HERE. Thanks to all who sent in responses. I especially enjoyed hearing & reading so many wonderful stories of grandmothers & grandfathers who sound so similar to mine. Today’s answers follow the honor roll.

Attorney called me with an inquiry. She said “Mike, I have some questions about mental impressions, as well as internal notes and memoranda.” Most likely, what issue did Attorney call to discuss?

A. The duty to report a client’s fraud

B. The duty to act competently to safeguard client data stored in the cloud

C. Duties to a client who suffers from a diminished capacity

D File delivery & the question of “what is the file?”

I might have phrased this one poorly. Option “A” certainly could happen, as a lawyer’s mental impressions and notes might include information that must be revealed pursuant to Rule 1.6(b). However, here, I was getting at whether an attorney’s notes and mental impressions are part of “the file.” For more on this topic, including a link to an ABA Formal Advisory Opinion, see this post.

Question 3

Fill in the blank. (two words)

Lawyer called with an inquiry. Lawyer said “client said she’s fine with it, so do you think that I have ________ ___________?”

I replied “Well, ‘she’s fine with it’ isn’t exactly the definition of _________ _________. Per the rules, it’s an agreement to a proposed course of conduct after you’ve adequately communicated & explained the material risks, and reasonably available alternatives to, the proposed course of conduct.”

Hint: in honor of my grandfather’s Chicago roots, and in anticipation of a blog I intend to post next week . . .

Lawrence Mattingly practiced law in Illinois. Once, he arranged a meeting between a client and federal agents/prosecutors who were trying to build a tax evasion case against the client. During the meeting, the client claimed “I’ve never had much of an income.”

Later, Attorney Mattingly provided Treasury agents with a letter in which he conceded that his client had, in fact, earned a substantial income over the previous 4 years. The “Mattingly Letter” was admitted at trial and used as evidence against the client. The client was convicted and sent to prison.

” are not prohibited in domestic relations matters which involve the collection of (i) spousal maintenance or property division due after a final judgment is entered; or (ii) child support and maintenance supplement arrearages due after final judgment, provided that court approves . . .”

You’re an attorney who has been assigned to represent Phil Connors. Phil is a weatherman who has been charged with simple assault. He allegedly punched Ned Ryerson in the face.

Phil tells you that he doesn’t remember much about Ryerson, but that the two went to high school together. The State’s discovery reflects that Ryerson, or “Needlenose Ned,” did the whistling-belly-button trick at the senior talent show, and even dated Phil’s sister until Phil told him not to. Bing!

Phil tells you that he hasn’t seen Ryerson in years. However, lately, they’ve run into each other often on the street.

As a competent and diligent lawyer, you argue to the prosecutor that your client isn’t a criminal, but a Renaissance man! After all, he’s very recently learned how to speak French, play piano, and carve ice sculptures.

What movie are you in? Groundhog Day

Bonus: what song does your client wake to every morning? I Got You Babe, by Sonny & Cher

But first, one of my favorite things about this blog is using the intro to the #fiveforfriday quizzes to forge connections with readers Here are a few reader responses to my post on Route 103, country stores, and corner markets:

103 was Papa & Nanny’s P.O. Box their entire time in Bradford! (guess who sent that one)

I know the Vermont Country Store in Rockingham very well – in fact, my lovely and talented wife was employed there until giving birth to our first son.

I know that 5 and 10 in Bradford (I think if just closed a year or 2 ago) – One of our favorite farms is just up the road called 4 Corners.

Yes, the Vermont country stores are awesome. We visit the Warren store with some regularity on our way to or from Rochester, VT.

On 103 in Chester, in addition to a bunch of small stores, there is Lisai’s–a grocery store which somewhat fits your description of the Fruit Store, but without such a slope to its uneven wooden floor: low ceilings, narrow (but not constricted) aisles, one door in and one door out that seem reversed, a little bit of a lot of things, and great meat.

Attorney filed a motion for summary judgment. Lawyer reviewed the motion and realized that Attorney failed to cite to an opinion of the Vermont Supreme Court that supports Attorney’s argument. Lawyer knows that the opinion is directly adverse to Irving’s position.

Lawyer explained Attorney’s oversight to Irving. Irving instructed Lawyer not to cite to the Supreme Court opinion in their cross-motion for summary judgment.

Which is most accurate?

A. Lawyer must report Attorney to disciplinary authorities

B. Lawyer must abide by Irving’s instruction not to cite to the opinion

C. It’s up to Lawyer whether to cite to the opinion

D. Lawyer must disclose the opinion to the trial court. Rule 3.3(a)(1)

Question 4

A lawyer called me with an inquiry. I listened, then said “it seems that you qualify as ‘necessary.’ Therefore, you can’t do it unless (1) it’s about an uncontested issue; (2) it relates to the value of legal services you provided; or (3) disqualifying you would cause substantial hardship to your client.”

What is “it“?

Testifying during a trial in which the lawyer is also acting as an advocate. Rule 3.7

Question 5

Velma Kelly is a celebrity showgirl who was charged with murdering her husband & sister.

Roxie Hart is a would-be celebrity who was charged with murdering a lover who falsely promised to have connections that would make her as big a star as Velma.

Billy Flynn is the media-loving lawyer who represented them both. He did so despite the fact that, in exchange for leniency, Velma testified against Roxie. Specifically, Velma read to the jury incriminating excerpts from Roxie’s diary.

That’s right: Billy represented a murder client in a case in which one of the witnesses against her was another of his murder clients.

Both Velma and Roxie were acquitted. Mainly because Billy Flynn knowingly introduced false evidence that the prosecution had authored the incriminating diary entries.

In 2003, Catherine Zeta-Jones won the Academy Award for Best Actress for playing Velma. Renee Zellweger and Queen Latifah also received Oscar nominations for their roles in the same movie.

I don’t know whether Billy Flynn was charged with an ethics violation. If he had been, his defense might have been to ask the disciplinary prosecutors why they were bothering with “all that jazz.”

It is not uncommon for me to receive an inquiry in which a lawyer asks what can be included in a particular type of motion. For example: “Mike, I’m thinking of filing a motion __ _______________, but don’t want to disclose any confidences.”

Typically, I reply with something like: “I think it’s best to cite one of the reasons that appears in the rule, then, if asked for more by the court, answer, but only by providing the information necessary to respond to the court’s specific question. And, even then, the motion doesn’t give you license to start blabbing about the case.”

For purposes of this column, #102 is sufficiently close to ’02, as in 2002.

This week, the United States Supreme Court heard an appeal of a criminal case in which defense counsel conceded a client’s guilt over the client’s objection. Now, the client is on death row. Although styled as a 6th Amendment, effective assistance case, it also involves ethics. Rule 1.2(a) makes it very clear that the decision whether to plead guilty belongs to the client. I intend to blog on the case, either tomorrow or next week.

In any event, in 2002, Halle Berry won the Academy Award for Best Actress for her role as the widow of a man who had been executed for his crime. The movie also starred Billy Bob Thornton, Heath Ledger, Peter Boyle, Sean Combs, and Mos Def.

Yes, I realize that I just broke last week’s promise never again to reference Puffy.

Before I get to the Honor Roll & answers, kudos to the VBA’s Young Lawyers Division for putting together (yet another) fantastic Thaw in Montreal. A special thanks to VPR’s Mitch Wertlieb for sharing his thoughts on (and obvious love for) radio with us Saturday morning. From the “Vermont is a small but awesome world” department, I had an opportunity to meet Mitch’s wife Erin. As we chatted, I learned that they live in the neighborhood where I grew up, in the house in which my elementary school principal lived.

Oh yeah, my readers make this world pretty awesome too. I received not 1, but FOUR offers to borrow a tape player. Also, I love the fact that a few of you reacted to my DC 101 post with declarations of undivided loyalty to WHFS. HFStival rocked! But not quite as much as did DC101.

Finally, Hal Miller earns special mention this week. In between surf breaks outside The Point, he was the only reader to remark upon the not-so-hidden WagonWheel (Darius Rucker version here) references in Friday’s column. Per tradition, Friday night at The Thaw included many Vermont lawyers enthusiastically, if not competently, singing along to the Solstice version at Hurley’s.

D. The reputation & ability of the lawyer who performed the services that generated the fee.

See, Rule 1.5. The fact that a client agrees to pays (or has paid) a fee is NOT one of the listed criteria to determine whether a fee was reasonable. It is the Court that has the final say on whether a fee was reasonable. Whether the client agreed or paid is not, in and of itself, dispositive.

Question 2

Fill in the blank. (two words)

Even if it does not give rise to a conflict under Rule 1.7 or 1.9, I often caution lawyers against taking a case in which it’s likely they’ll have to depose or cross-examine a ______ _______ .

C. Collected funds prior to disbursement. See, Rule 1.15A(f). For the exceptions, see Rule 1.15A(g). It lists the instruments that are deemed so reliable that lawyers may disburse against them on deposit, before they become “collected funds.”

“Only if it’s reasonable to believe that you can provide competent & diligent representation to each, it’s not prohibited by law (whatever that means), they aren’t adversaries in the same case, and each provides informed consent, confirmed in writing.”

This week, the Department of Justice made an announcement that, arguably, has ethical implications for Vermont attorneys. The announcement concerned:

A. Immigration

B. Privacy

C. Marijuana. Vermont lawyers do not violate V.R.Pr.C. 1.2(b) by providing advice on marijuana-related matters that are legal under Vermont state law. For more, see this post. Whether providing such advice violates federal law is a question beyond the scope of the Rules of Professional Conduct.

D. Electronically Stored Information

Question 5

Even if you’ve never heard of Ted Buckland, Dr. Kelso, The Gooch, or New Sacred Heart Hospital, if you know a of clothing that’s common in a hospital, you can make an educated guess at this question.

Ted Buckland is in-house counsel at New Sacred Heart Hospital. He’s also one of the most pathetic and least competent lawyers in TV history. Among other things,

Ted lived at home with his mother well into his adult life;

Although a lawyer, Ted’s mother thinks that he is a doctor;

He failed the bar exam 5 times, before passing it in Alaska;

Ted’s low self-esteem & chronic anxiety often leave him unable to provide Dr. Kelso, the hospital’s Chief of Medicine, with any legal advice, not to mention competent legal advice;

Once, a patient slipped & fell at the hospital. Ted is so incompetent that his immediate response was to blame the fall on the patient’s slippers . . . not realizing that the patient was wearing hospital-supplied booties.

Ted is in a band. It’s name is The Worthless Peons.

The Gooch broke Ted’s heart.

In one episode, Ted warned the hospital’s staff:

“Finally, doctors, if there is a mistake, don’t admit it to the patient. Of course, if the patient is deceased – and you’re sure – you can feel free to tell him or her… anything.”

The reason Ted’s mother thinks that he is doctor is because, once, he came home from work wearing a type of clothing that’s common in a hospital. He told her he’d saved someone’s life that day.

Name the show on which Ted Buckland is in-house counsel at New Sacred Heart Hospital.

There’s a rule that prohibits a particular act. There are 4 exceptions. Per the exceptions, a lawyer may:

pay the reasonable costs of advertisements;

pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service;

pay to buy a law practice; and,

enter into a referral agreement with another lawyer (or non-lawyer professional) that is not otherwise prohibited by the rules.

What’s the act that the rule prohibits?

A. Sharing fees with a lawyer in another firm.

B. Giving something of value to a person for recommending the lawyer’s services. See, Rule 7.2(b).

C. Disbursing trust funds in reliance upon deposits that have not yet cleared.

D. Advertisements targeted by area code.

Question 4

Partner and Associate worked together on a case. Partner asked Associate to prepare a pleading. Associate did, but expressed concern that the pleading was frivolous. Partner disagreed and instructed Associate to file the pleading. Associate signed and filed the pleading.

Later, the trial court determined that the pleading was, in fact, frivolous. The trial court referred the matter to disciplinary counsel for an investigation into whether Associate’s filing of the pleading violated Rule 3.1 of the Rules of Professional Conduct.

B. The trial court’s finding operates to estop Partner & Associate from arguing that they did not violate Rule 3.1.

C. Associate did not violate Rule 3.1.

D. Associate did not violate Rule 3.1, so long as Associate acted in accordance with Partner’s reasonable resolution of an arguable question as to whether the pleading was frivolous.

See, Rule 5.2(b). Note: nothing in Vermont’s rules of disciplinary procedure create rebuttable presumptions of misconduct that lawyers must overcome. Rather, disciplinary counsel bears the burden of proving a violation by “clear and convincing evidence.” That is especially key in this question, where the standard applied by the trial court may not necessarily have been “clear and convincing.”

Question 5

Little did you know that a movie renowned for math could involve law.

One of the most competent pro se litigants in movie history was a character in a film that was nominated for Best Picture in 1998. Despite having no formal education or training, Character was pretty damned competent. Here’s the script for the scene where, at his arraignment on a charge that he had assaulted a police officer, Character argued his own motion to dismiss,

Character: There is lengthy legal precedent, your honor, going back to 1789, whereby a defendant can claim self-defense against an agent of the government, if that act is deemed a defense against tyranny, a defense of liberty.

Character: I’m afforded the right to speak in my own defense, sir, by the Constitution of the United States. This is the same document that guarantees my liberty.

Prosecutor: Hey, don’t tell me about the Constitution of the United States.

Character: Now, liberty, in case you’ve forgotten, is the soul’s rights to breath. And when it cannot take a long breath, laws are girded too tight. Without liberty, man is a syncope.

Prosecutor: Man is a what?

Character: Ibid, your honor.

Judge: Son, my turn. I’ve been sitting here 10 minutes now looking over this rap sheet of yours. I just can’t believe it. June ’93, Assault. September ’93, Assault. Grand Theft Auto in February ’94, where you apparently defended yourself by citing Free Property Rights of Horse and Carriage from 1798. January ’95, Impersonating an Officer, Mayhem, Resisting. All overturned. I’m also aware that you’ve been through several foster homes. The State removed you from three due to physical abuse. You know, another judge might care, but you hit a cop. You’re going in. Motion to dismiss is denied. $50,000 bail.

Character:Thank you your honor.

Character didn’t post bail, but didn’t stay in long either. Soon after the arraignment, he was released to the supervision of an MIT professor who had been at the arraignment. The professor had attended after having been intrigued by Character’s math skills. In particular, the professor was impressed with Character’s ability to solve a proof that the professor’s students couldn’t.

Character’s conditions of release required him to attend therapy sessions with the professor’s college roommate, a psychology teacher at a local community college. In 1998, the actor who played the psychology teacher won the Academy Award for Best Supporting Actor.

Name the movie.

GOOD WILL HUNTING

Hint: the theme of #fiveforfriday #75 was Pudge Fisk’s home run in Game 6 of the 1975 World Series. In the movie that is the subject of today’s question 5, Character’s court-ordered therapist/psychologist recounts giving up his ticket to Game 6 because he had “to go see about a girl.”

D. The rules are silent as to how often trust accounts must be reconciled

Question 2

Soon, the Professional Responsibility Board will formally recommend that the Court review several proposed changes to the Rules of Professional Conduct. One recommendation will be to amend the rule that applies to “lateral transfers.”

Lawyer called me with an inquiry. I listened, then replied by reading the rule aloud. Then, I said “here are the exceptions. Among other things, you can state information that’s in the public record, including the claims, defenses, and names of people involved. You could also request assistance obtaining information or evidence. Just don’t do anything that will have a substantial likelihood of materially prejudicing the outcome.”

Speaking of the 1997 Academy Awards, Fargo won two of the major awards: Frances McDormand won Best Actress and Joel Coen won Best Screenplay.

The same year, another movie received nominations for several of the major awards. It’s a movie that was based on Leigh Steinberg. In real life, Steinberg is a lawyer and agent who has represented many top athletes. In ’97, the actor who played Steinberg was nominated for Best Actor, but didn’t win. However, Cuba Gooding Jr. won for Best Supporting Actor for his role as one of the clients.

Lawyer wonders whether a client’s agreement to waive a conflict complies with the rules. Researching it, Lawyer learns that ___________________ “denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video-recording, and e-mail.”

If Attorney sues Client for a fee, Attorney cannot represent herself at trial if her testimony will be reasonably necessary to establishing the nature and value of the legal services that she rendered to Client.

Attorney called me with an inquiry. I listened, then replied “over 20 years ago, the rule was changed to make it clear that it not only applies to ‘parties,’ but to any person who is represented in the matter.”

On TV, my name is Rachel and I am a summer associate at a law firm. For many years, I worked as a paralegal at the firm. I wanted to go to Harvard Law, but never scored high enough on the LSAT. Thanks to help & encouragement from one of the firm’s lawyers, I kept trying and, eventually, scored high enough to get into Columbia Law, which I’m currently attending.

The lawyer who helped me? His name is Mike. Some would say he’s no prince. When the firm hired him as an associate, he neglected to disclose that he had never gone to law school and wasn’t even really a lawyer. But, what a guy! We fell in love and, now, on the show, we’re engaged.

In real life, I also just got engaged. And not to some lawyer with a sketchy background.

Who am I?

Meghan Markle. The show is Suits. If you haven’t heard of her, in real life, she and Prince Harry recently engaged.